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An interview with Mr Justice Birss: part 1/3: getting personal

I was delighted to have the chance to put a few questions to Sir Colin Birss, judge of the High Court Chancery Division and nominated judge of the Patents Court.

In part 1 of my interview with Sir Colin, he talks about his career and interests. In part 2, he gives some perspectives on current developments in litigation procedure. Finally, in part 3, Sir Colin considers what the future might hold for civil litigation in England and Wales.

Sir Colin Birss graduated from Downing College, Cambridge, with a first class degree in metallurgy and materials sciences. After graduating, he worked for Arthur Andersen and was subsequently called to the Bar in 1990, joining Three New Square, a specialist IP set.

Sir Colin was appointed Standing Counsel for the Comptroller General of Patents, Trade Marks and Designs in 2003. In 2008, he took silk and was appointed as a Deputy Chairman of the Copyright Tribunal. From 2003 until 2009, he also worked as a member of the Professional Conduct and Complaints Committee of the Bar Standards Board.

In 2010, Sir Colin left the Bar to become the new judge of the Patents County Court and Chairman of the Copyright Tribunal. His appointment to the Patents County Court coincided with the introduction of new procedural rules designed to streamline procedures. In 2013 he was appointed as a judge of the High Court Chancery Division and also nominated as a judge of the Patents Court.

Sir Colin has a special interest in the Shorter and Flexible Trials Pilot Schemes currently running in the Rolls Building courts. His success streamlining Patents County Court practices provides an excellent basis for him to explain the potential benefits of simplified procedures, and how that can work in the Rolls Building courts.

You studied sciences at university. Why did you decide to be a lawyer? It is probably relatively unusual for judges not to have studied law at university.

My impression is that the number of “non-lawyer lawyers” is growing a little bit.

Why did I do it? Well the true story is that I set fire to my transistor in my physics practical, so I thought, “That’s enough – I’m going to have to do something else.” So that’s part of it.

Why else? I don’t know. I programmed computers for a little while (at Arthur Andersen) after leaving university. Then I decided to go into law, I really can’t remember why though. There weren’t any lawyers in the family – my father was a scientist.

When I first thought of doing law, I didn’t have an eye on IP or patents at all, but I went to see some people and, of course, the first thing they said was, “Oh you’ve got a science degree – you’ll presumably want to do IP and patent law”. People started saying that. So I thought I’d better find out about it and, when I did, I thought it looked interesting.

A scientific background is a real advantage in patents – the rest of IP not so much, copyright or trademarks are not technical, but in patents it can be. You don’t need to have a degree in the actual subject of the case you’re doing. I did a lot of chemistry and biotechnology cases as a barrister, and I do them as a judge.

I think perhaps, from the perspective of the law world outside, it looks unusual, but actually an awful lot of the science and “techie” types end up migrating to patents, so you’re not such an unusual animal in the little pond you make your career in.

Were there benefits from having previous work experience before embarking on your legal career?

I do think people who didn’t do pure law do get something which some young lawyers particularly don’t always appreciate – that law is always about something else. Law isn’t about law – it is easy to get seduced into the idea that law for its own sake is what matters. I don’t hold with that view at all. And I think that having a perspective having come from outside into it helps you a bit.

Of course, jurisprudence is a worthy thing to study but, ultimately, practical law – whether in court as a judge or as a lawyer – is about sorting out problems in the real world, whether crime, family, commercial law or anything else.

What are your interests outside the law?

Well, beekeeping is something I talk about a lot and it is true – I do keep bees. I do enjoy gardening, and sitting in a dinghy in the Scilly Isles catching mackerel – that’s my favourite occupation. They are all quite therapeutic.

I’m a tinkerer as well. I built a computer when I was a teenager – and I still use the soldering iron. A terrible confession!

Everyone likes to know about people’s early experiences in their careers. As a junior barrister, did you have any tricky or embarrassing moments?

There are too many to remember! The worst one I can think of was when I was in a very boring conference with a very important “grown up” senior barrister, and I drew a really bad caricature of him on my notepad, and then turned my notepad over. Then I realised that, for most of the rest of the conference, that man must have been sitting looking at my very bad caricature. I’m no artist, but the drawing wasn’t so bad that it was unrecognisable!

I never found out if he did notice. I never worked with him again after that…

Based on your career as a judge, what has been your most interesting case? Or have they all had something a bit special?

To be honest, I enjoy the case I’m doing when I’m doing it. That might sound a bit sad – or “politically correct”- but it is true.

I’ve been very very lucky. I have done so many interesting cases. The PCC also provided a great opportunity to do all sorts of interesting things – smaller cases that you didn’t do as a senior barrister.

The sort of lawyers who become judges have often spent a lot of time doing big cases before they go on the Bench. Then suddenly, in the PCC, I was back to doing little cases, which was great. There was so much variety. Commercial litigation like IP doesn’t directly affect individuals’ lives much but the PCC absolutely affected people’s lives in a way that big business cases don’t.

You get that in the Chancery Division too: not with IP but you get it with the applications court and personal bankruptcy appeals and that kind of thing. It is surprising how much Chancery judges do that has that human element. It sounds dry and dusty but actually it is not at all.

I heard a case about a will between two sides of a second marriage family – a bitter family dispute. It is real. That makes you realise what the point of our system is – and I think that is a good thing.

If you had to choose one “icon” of the English legal system, who would that be?

The person I would mention is Robin Jacob. He is such an icon in IP and I am an IP lawyer. His contribution to IP law over his long and distinguished career is amazing.

At the Bar he was a fantastic barrister, he was then a really good judge in the High Court and a really good judge in the Court of Appeal. He has developed IP law in a positive way.

He is a down to earth judge with a human touch, and I think that that is something which is worthwhile.

Courts and Tribunals Judiciary Practical Law Dispute Resolution Beverley Barton Mr Justice Birss

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